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Yu v. Idaho State University

United States District Court, D. Idaho

February 15, 2019

JUN YU, Plaintiff,


          Honorable Ronald E. Bush Chief U.S. Magistrate Judge

         This decision resolves Plaintiff's Motion in Limine Requesting the Court to Exclude Dr C. Gladney, Ph.D., as an Expert Witness or Strike His Testimony (Dkt. 89).


         Plaintiff Jun Yu alleges that Defendant Idaho State University (hereafter “Defendant” or “ISU”) deliberately and unlawfully discriminated against him due to his national origin in violation of Title VI of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000d et. seq. FAC ¶ 353 (Dkt. 41). In this motion, Plaintiff seeks an order excluding Defendant's expert Dr. Gladney as a witness or striking his testimony and limiting the topics on which he may testify.


         Pursuant to the Federal Rules of Evidence and Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993), a trial judge must ensure that expert testimony is both relevant and reliable. Wendell v. GlaxoSmithKline LLC, 858, F.3d 1227, 1232 (9th Cir. 2017). Testimony is relevant if it “logically advance[s] a material aspect of [a] party's case.” Estate of Barabin v. Astenjohnson, Inc., 740 F.3d 457, 463 (9th Cir. 2014) (citation omitted). This is a “low” bar. Messick v. Novartis Pharm. Corp., 747 F.3d 1193, 1196 (9th Cir. 2014) (citing Daubert v. Merrell Dow Pharm., Inc., 43 F.3d 1311, 1315 (9th Cir. 1995)).

         The goal of the reliability inquiry is for district courts to “play an active and important role as gatekeepers examining the full picture of the experts' methodology and preventing shoddy expert testimony and junk science from reaching the jury.” Murray v. Southern Route Maritime SA, 870 F.3d 915, 923 (9th Cir. 2017) (citing Daubert, 509 U.S. at 595-97). More specifically, the reliability inquiry “asks whether an expert's testimony has ‘a reliable basis in the knowledge and experience of the relevant discipline.'” United States v. Wells, 879 F.3d 900, 933-34 (9th Cir. 2018) (quoting Kumho Tire Co. v. Carmichael, 526 U.S. 137, 149 (1999), with alteration omitted).


         Plaintiff's motion seeks (1) to strike the entire testimony of Dr. Gladney under Federal Rules of Civil Procedure 26 and 37; (2) to exclude Dr. Gladney as an unqualified expert under Federal Rule of Evidence 702; and/or (3) to strike Dr. Gladney's testimony in whole or in part as inadmissible under Federal Rules of Evidence 702, 703, 704, 104, 402, and 804. The Court will first address the issue of Defendant's disclosure of Dr. Gladney as an expert and will then address the issue of Dr. Gladney's qualification as an expert.

         1. The Court Will Not Strike or Limit Dr. Gladney's Testimony Under FRCP 26 or 37.

         Plaintiff argues that Defendant's disclosure of Dr. Gladney as an expert failed to comply with the requirements of Federal Rule of Civil Procedure 26(a)(2)(B). He contends that Dr. Gladney's curriculum vitae (“CV”) was not current and that Dr. Gladney's expert report did not attach (but did reference) an Exhibit B providing Dr. Gladney's experience testifying in other cases in the previous four years. He also challenges the completeness of Dr. Gladney's report with respect to the opinions it expresses and the bases for such opinions.

         Rule 26 places certain requirements upon the details of an expert witness disclosure. If a disclosed expert report falls short of the requirements, the expert may not be allowed to testify in whole or in part. Fed.R.Civ.P. 37(c)(1). However, such sanctions do not apply if the party's failure was substantially justified or harmless. Id. The party facing the sanction has the burden of showing substantial justification or harmlessness. Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1107 (9th Cir. 2001).

         The Court is not persuaded under Rule 26(a)(2)(B)(iv) that Plaintiff has shown that Defendant failed to disclose “the witness's qualifications, including a list of all publications authored in the previous 10 years.” Plaintiff's initial argument was that Dr. Gladney's CV, which was provided in 2016, showed no publications since 2011. However, the first page of the CV indicates it was current as of March 2015. The CV also discloses three forthcoming publications, including one that was scheduled to be published in September 2014. There is a cobbled overlap in the dates of all of that, but nothing indicates that the required information (as opposed to a particular date on which the document may have been prepared) was not current as to this particular detail at the time it was disclosed, and therefore it does not run afoul of Rule 26 - at least as to the detail of the witness's qualifications and publications.

         However, the Rule 26(a)(2)(B)(v) requirement was not met - that there be a disclosure of “a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition.” Defendant's disclosure contains a reference to an “Exhibit B” to Dr. Gladney's report that was to include such a list, but there was no such list provided with the ...

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